Opinion
Civil Action No. 02-963
January 27, 2004
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
I. RECOMMENDATION
For the reasons stated below, it is respectfully recommended that the Defendants' Motion for Summary Judgment (Doc. 19) be granted.
II. REPORT
BACKGROUND
A. Procedural History
Melissa W. Visnikar ("the Plaintiff") is a female geologist, who currently works at the Department of Environmental Protection, Bureau of Oil and Gas Management ("the DEP"). See generally Compl. (Doc. 1). On May 28, 2002, the Plaintiff commenced this action against the DEP and various members of its management (referred to collectively as "the Defendants"). See generally id. The individuals named in the complaint include: Thomas Flaherty ("Flaherty"), the DEP's Technical Services Chief; David Janco ("Janco"), the DEP's Program Manager; and Jim Erb ("Erb"), the DEP's Bureau Director. See id. ¶¶ 6, 7 8. The Complaint generally alleges "employment discrimination and harassment based on gender/sex and retaliation for engaging in protected acts." See id., "Complaint." The Plaintiff was allegedly discriminated against "by being denied promotion[s] and reclassification, while other, less qualified males with less seniority who were trained by the Plaintiff were promoted over her. . . ." See id. ¶ 13(a). In addition, the Plaintiff claims she was "harassed and subjected to sexual innuendo and sexually offensive comments." See id. ¶ 13(b). As the Plaintiff has characterized the suit in her subsequent briefing, "[t]he crux of this case is whether Plaintiff, one of the only female geologists, who has worked in the same position for over a decade at the DEP, was continually discriminated against, subjected to a hostile work environment, unlawfully denied a promotion, and retaliated against, all because of her gender." See Pl.'s Resp. to Defs.' Mot. for Summ. J. (Doc. 25; hereinafter cited as "Pl.'s Br.") at 1.
The Complaint specifically alleges the following claims against the various Defendants:
Employment discrimination against the DEP in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") and the Equal Pay Act, 29 U.S.C. § 206(d) ("the EPA"). See Count I;
Federal civil rights violations against all Defendants based on the alleged denial of equal protection as provided by the Fourteenth Amendment under 42 U.S.C. § 1983 ("Section 1983"). See Count II;
Pendant state claims against all Defendants based on alleged violations of the Pennsylvania Human Relations Act, 43 P.S. Section 951 et seq. ("the PHRA"). See Count III; and
Aiding and abetting employment discrimination claims against Flaherty, Janco, and Erb under the PHRA, 43 Pa. C.S.A. Section 955(e). See Counts IV, V, VI.
Count I also references certain provisions the Civil Rights Act of 1991, 42 U.S.C. § 1981 and 1985 ("Section 1981 and 1985 claims") as potentially creating additional bases of liability. The parties, however, appear to stipulate to the dismissal and/or withdrawal of these claims. See Statement of Material Facts Accompaniment to Mot. for Summ. J. (Doc. 22; hereinafter cited as "Defs.' Facts") ¶ 3 (omitting Section 1981 and 1985 claims from those claims listed in the Complaint); see Pl.'s Statement of Disputed Material Facts in Resp. to Defs.' Mot. for Summ. J. (Doc. 27; hereinafter cited as "Pl.'s Facts") (responding "Undisputed" to Defendants' characterization of claims in ¶ 3, above).
The Plaintiff seeks, inter alia, injunctive relief; actual and consequential damages, including back and front pay with prejudgment interest; compensatory, punitive, and nomimal damages; litigation costs; and any other relief the court finds just. See "Wherefore" Clauses.
On August 5, 2003, the Defendants filed a Motion for Summary Judgment ("the Defendants' Motion" or "Motion"). See Mot. for Summ. J. (Doc. 19; hereinafter cited as "Defs.' Mot."). On the following day, the Defendants submitted: a supplement to their Motion, see Supplement to Mot. for Summ. J. (Doc. 20; hereinafter cited as "Defs.' Supp."); a supporting brief, see Br. in Supp. of Mot. for Summ. J. (Doc. 21; hereinafter cited as "Defs.' Br."); and a statement of material facts, see Defs.' Facts.
In turn, on November 24, the Plaintiff filed: a response brief, see Pl.'s Br.; various exhibits, see Pl.'s App. of Exs. in Resp. to Defs.' Mot. for Summ. J. (Doc 26; hereinafter cited as "Pl.'s Exs."); and a statement of disputed material facts, see Pl.'s Facts. The briefing has come to a close and the matter is now ripe for adjudication.
B. Facts
The Plaintiff has been employed at the DEP since 1992. See Letter from Duritsa to Visnikar dated July 26, 1992 (attached as Ex. F4 to Pl.'s Exs. at 3) (confirming the Plaintiff's employment at the DEP). From 1993 to 2001, she held the position of "Geologist I." See EEOC Charge of Discrimination (attached as Ex. A to Pl.'s Exs.; hereinafter cited as "EEOC Charge"). In April, 2001, she was reclassified as a "Geologic Specialist." See Letter from Coakley to Visnikar dated Apr. 6, 2001 (attached as Ex. G to Defs.' Mot.; hereinafter cited as "Reclassification Letter") (informing the Plaintiff of change of classification, effective April 21, 2001). By the Plaintiff's own admission, she has not obtained a professional geologist's license. See Dep. of Melissa W. Visnikar (attached as Ex. A to Defs.' Mot.; hereinafter cited as "Visnikar Dep.") at 42.
According to the Plaintiff's submissions, a professional geologist's license can be obtained in one of two ways: either by taking an exam, or by a "grandfathering in" process. See Dep. of Bryan McConnell (attached as Ex. G to Pl.'s Exs.) at 91-92. Under the latter procedure, an applicant must have five years of experience relevant to the practice of geology and submit three references to the relevant state agency verifying that experience. See id. at 92.
In 1997, Flaherty, the Chief of the Technical Services Section of the Gas and Oil Program, allegedly assigned to the Plaintiff the title of "Senior Geologist," a position that entailed, among other responsibilities, providing "training and assistance" to geologist trainees. See Decl. of Melissa Visnikar (attached as Ex. K to Pl.'s Exs.; hereinafter cited as "Visnikar Decl.") ¶¶ 3 4 and accompanying exs.; see also Pl.'s Facts ¶ 2. During this time, she trained two less senior male geologists in her unit: Eric Draper ("Draper") and Robert Swansboro ("Swansboro"). See Pl.'s Facts ¶ 2. Both Draper and Swansboro have been licenced through the grandfathering process. See Flaherty Dep. at 48, 55.
The Plaintiff's submissions indicate that such training is typical of the Geologist I's position. See Dep. of Tom Flaherty (attached as Ex. H to Pl.'s Exs.; hereinafter cited as "Flaherty Dep.") at 46 ("Q: Is it typical for someone with a lower classification than geologist 2 or professional geologist to be training someone? A: Yes. That's sort of standard office procedure not just in oil and gas but other programs to help the supervisor out.").
Draper's employment commenced on November 1, 1993. See Letter from Duritsa to Swansboro dated December 22, 1993 (attached as Ex. F4 to Pl.'s Exs. at 7).
Swansboro was hired on January 25, 1993. See Letter from Duritsa to Swansboro dated August 25, 1993 (attached as Ex. F4 to Pl.'s Exs. at 5).
Between April 1997 and April 2000, the Plaintiff received strong appraisals from her supervisors. See Pl.'s Br. at 6. In fact, her annual reviews identify the Plaintiff's performance in all areas during this time period as either "Commendable" or "Outstanding." See id.; see also Employee Performance Reviews (attached as Ex. J to Pl.'s Exs.).
At some point prior to February 1999, the Plaintiff allegedly communicated to Flaherty her desire to be promoted to a Geologist II position. See Pl.'s Br. at 6-7; Flaherty Dep. at 41-43. During this "informal discussion," Flaherty informed the Plaintiff that he would discuss the matter with his supervisor, Janco. See Flaherty Dep. at 41-42. Flaherty and Janco allegedly concluded that because "the personnel people were rewriting the class specifications for the geologist series[,]" they "agreed that rather than try to present a request for reclassification when the class specs were being rewritten that it seemed to make more sense to wait for reclassification to be completed and then address it if [they] could." See id. at 42.
In February of 1999, the Plaintiff filed a grievance ("the 1999 Grievance") with her employer and/or her union based on the denial of her promotion to Geologist II ("the 1999 Promotion Denial"). See EEOC Charge. While the parties have not outlined in detail the process through which the 1999 Grievance reached its final disposition, the Plaintiff's deposition testimony indicates that the Plaintiff's union determined not to arbitrate the issue, and that it was denied and withdrawn on January 11, 2001. See Visnikar Dep. at 12-13; see also EEOC Charge.
The Plaintiff, however, did not commence any of the administrative proceedings with the EEOC at that time.
On April 6, 2001, the DEP adopted a new classification system ("the 2001 Reclassification"), as evidenced by a letter issued by the DEP's Bureau of Personnel stating: "On March 14, 2001, the Executive Board formally adopted a new classification series for geologists and hydrologists based on a settlement between the Commonwealth and AFSCME." See Reclassification Letter.
Pursuant to the reclassification, the Plaintiff's former classification as "Geologist I" became known as "Geologic Specialist," a fact that otherwise had no effect on the Plaintiff's status or salary. See id.
However, the position of "Geologist II" — the position previously sought by the Plaintiff — was now classified as "Licensed Professional Geologist." See Flaherty Dep. at 34; see also Professional Geologist Implementation (attached as Ex. I to Defs.' Supp.; hereinafter cited as "Implementation Chart") at 6. As the title suggests, a professional geologist license was now required to assume that position. See Defs.' Br. at 12.
Through this reclassification, Draper and Swansboro were both promoted to the position of Licensed Professional Geologist, which increased their salaries to paygrade 8. See EEOC Charge. In contrast, the Plaintiff, as Geologic Specialist, remained at paygrade of 7. See id. The court will refer to these events as "the 2001 Failure to Promote".
On June 1, 2001, the Plaintiff filed a complaint with the EEOC ("the EEOC Charge"). See Pls.' Facts ¶ 4. The EEOC Charge indicates that it was cross-filed with the Pennsylvania Human Relations Commission. See EEOC Charge. The EEOC Charge alleges unlawful discrimination claims under Title VII — the first based on the Plaintiff's sex, and the second based on retaliation for the Plaintiff's filing of the 1999 Grievance. See id. It also alleges a violation of the EPA. See id. As the parties dispute the precise scope of the EEOC Charge, its substance will be explored in greater detail below. See discussion, infra, at 11-18. The EEOC dismissed the Plaintiff's claims. See EEOC Dismissal and Notice of Rights (attached as Ex. to Compl.). In a letter dated January 25, 2002, the EEOC clarified: "The evidence obtained in the investigation of the [EEOC Charge] thus far does not support your allegation of sex and/or retaliation discrimination. Respondent has met its burden of articulating a legitimate, non-discriminatory reason for its action. . . ." See Letter from Sinkler to Visnikar dated Jan. 25, 2002 (attached as Ex. D to Defs.' Mot.; hereinafter cited as "EEOC Explanation Letter").
As the Plaintiff properly notes, "[t]he PHRC and EEOC have a work-sharing agreement in which `they have apportioned initial jurisdiction over discrimination complaints in order to avoid unnecessary duplication of investigatory time and effort.'" See Pl.'s Br. at 3 (citing Toomey v. Apple Press, Ltd., 2000 WL 1049278, *1 (E.D. Pa. July 27, 2000)). Further, "each agency waive[s] its right to initially review claims that are first filed with the other agency," and the second agency essentially defers to the first. See Toomey, 2000 WL 1049278 at *1 (citation omitted).
In addition to the facts identified above, the Plaintiff alleges that "throughout my 11 years at Defendant DEP, I was subjected to degrading, hostile comments that the male employees were not subjected to[,] such as David Janco, Program Manager and Tom Flaherty's supervisor (my boss' boss) telling me to `lick my fingers' after he ate a cinnamon roll during a meeting, and to speak softly in the office." See Visnikar Decl. ¶ 8.
In addition to the allegations outlined above, the Plaintiff's opposition brief introduces a new theory of discrimination based on new facts — namely, that Draper and Swansboro were hired at a higher salary than the Plaintiff. See Pl.'s Br. at 5 (stating "[a]s discovery produced by Defendants' [sic] revealed, Plaintiff was hired at a lower rate of pay than the two male geologists in her unit . . ."). This theory was not raised in its Complaint, nor has the Plaintiff sought to amend its Complaint to include such allegations. In a recent decision by the United State District Court for the Eastern District of Pennsylvania, the court forbid a plaintiff from raising new theories of discrimination based on new facts in order to avoid summary judgment, reasoning that "much of the value of summary judgment procedure . . . would be dissipated if a party were free to rely on one theory in an attempt to defeat a motion for summary judgment and then, should that theory fail, come back along thereafter and fight on the basis of some other theory." See Doltz v. Harris Assocs., 280 F. Supp.2d 377, 392 (E.D. Pa. 2003) (quoting Pallottino v. City of Rio Rancho, 31 F.3d 1023, 1027 (10th Cir. 1994)). Accordingly, the court will not address these allegations, nor do they serves as an impediment to the granting summary judgment in favor of the Defendants in this case.
C. Legal Standard
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." See Fed.R.Civ.P. 56(c). An issue is "`genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "material" if it might affect the outcome of the suit under governing law. See id.
The party seeking summary judgment always bears the initial responsibility of informing the district court of the basis of its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the movant's initial Celotex burden can be met simply by "pointing out to the district court that there is an absence of evidence to support the non-moving party's case." See id. at 325.
After the moving party has met its initial burden, "the adverse party's response, by affidavits or otherwise as provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." See Fed.R.Civ.P. 56(e). That is, summary judgment is appropriate if the non-moving party fails to rebut by making a factual showing "sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." See Celotex, 477 U.S. at 322. "[I]f the opponent [of summary judgment] has exceeded the `mere scintilla' [of evidence] threshold and has offered a genuine issue of material fact, then the court cannot credit the movant's version of events against the opponent, even if the quantity of the movant's evidence far outweighs that of its opponent." See Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Under Rule 56, the Court must view the evidence presented on the motion in the light most favorable to the opposing party. See Anderson, 477 U.S. at 255 (citation omitted).
ANALYSIS
1. The Plaintiff Has Failed to State Claims Under Title VII and the PHRA.
a. The Plaintiff has Failed to Exhaust Administrative Remedies in Regard to Certain Claims.
Before reaching the merits of the Plaintiff's Complaint, the Defendants argue that the District Court cannot consider several of the Plaintiff's claims because they were not exhausted in the administrative proceedings below. See Defs.' Br. at 1-5, 10-11. More specifically, the Defendants maintain that the court's review is limited to claims relating to the 2001 Failure to Promote, which represent the only claims presented to the EEOC. See id. It follows, therefore, that the Plaintiff's claims based on other theories, including, inter alia, an alleged hostile work environment and the 1999 Promotion Denial must be dismissed. See id.
It is well established that to bring suit under Title VII and the PHRA, a plaintiff must first file a timely administrative charge with the EEOC or a similar state agency. See 42 U.S.C. § 2000e-5(e); see also, e.g., Woodson v. Scott Paper Co., 109 F.3d 913, 925 (3d Cir. 1997). If the plaintiff "fails to exhaust administrative remedies her claims can be dismissed." See Zezulewicz v. Port Auth. of Allegheny County, 290 F. Supp.2d 583, 591 (W.D. Pa. 2003). As the United States Court of Appeals for the Third Circuit ("the Third Circuit Court") has explained, the purpose of the exhaustion requirement "is to afford the EEOC the opportunity to settle disputes through conference, conciliation, and persuasion, avoiding unnecessary action in court." See id. (quotingAntol v. Perry, 82 F.3d 1291, 1296 (3d Cir. 1996)). It also is intended to benefit the defendant employer by putting it "on notice that a complaint has been lodged against [it] and gives [it] the opportunity to take remedial action." See Lawton v. Sunoco, Inc., 2002 WL 1585582, *4-*5 (E.D. Pa. July 17, 2002) (citations omitted). Accordingly, "[b]ecause the aim of the statutory scheme is to resolve disputes by informal conciliation, prior to litigation, suits in the district court are limited to matters of which the EEOC has had notice and chance, if appropriate, to settle."Anjelino v. New York Times Co., 200 F.3d 73, 79 (3d Cir. 1999) (citations omitted).
To determine what claims are properly before the District Court, the test developed by the Third Circuit Court is whether the claims at issue fall "fairly within the scope of the prior EEOC complaint, or the investigation arising therefrom." See Antol, 82 F.3d at 1295 (citation omitted). The Third Circuit Court has cautioned against reading a plaintiff's EEOC Charge too narrowly, stating that courts must "keep in mind that charges are drafted by one who is not well versed in the art of legal description." See Hicks v. ABT Assoc., Inc., 572 F.2d 960, 965 (3d Cir. 1978). Thus, "the scope of the original charge should be liberally construed." See id. (citation omitted).
This standard applied to the PHRA claims as well. See Ackah v. Hershey Foods Corp., 236 F. Supp.2d 440, 444 (applying same test to exhaustion arguments under Title VII and the PHRA, stating "the PHRA should be construed in light of the principles of fair employment law which have emerged relative to the federal statute[s] . . .") (citations and internal quotations omitted).
Here, the EEOC Charge identifies the "cause[s] of discrimination" as two-fold: (1) "sex"; and (2) "other," which is specified as "Equal Pay." See EEOC Charge. It indicates, as the "Date Discrimination Took Place" ("the Date Box") from "04/20/2001" to "04/20/2001." See id. The box labeled "continuing action," however, is also marked. See id.
The narrative portion of the EEOC Charge comprises three paragraphs. See id. The first paragraph states: that the Plaintiff's employment began in 1993; that she was assigned "Senior Geologist" in 1997, and trained two less senior, male Geologists; that in April 2001, the two males were promoted to a paygrade 8, while she remained at paygrade 7; and that her grievances were denied by the Defendants. See id. ¶ 1. The second paragraph explains that Flaherty had previously denied her a promotion in February 1999, and that she filed a grievance that was later denied and withdrawn. See id. ¶ 2. It again states that in April of 2001, the Plaintiff was notified that her male co-workers were being promoted to paygrade 8. See id. The final paragraph states "I believe that I have been unlawfully discriminated against because of my sex, female, and in retaliation [based on the 1999 Grievance], in violation of Title VII. . . .[The Defendants] promoted a less senior, less experiences males, while I have been denied [a promotion]." See id. ¶ 3.
The Plaintiff's alleged hostile work environment claims simply cannot be construed as "fairly within the scope of the prior EEOC complaint." See Antol, 82 F.3d at 1295 (citation omitted). The EEOC charge does not identify a single remark or any other sexually harassing conduct towards the Plaintiff that would have put either the EEOC or the Defendants on notice that this type of claim served as the basis of her action. See Lawton, 2002 WL 1585582 at *4-*5 (dismissing hostile work environment claim where EEOC Charge alleged only failure to promote). Nor did the EEOC's investigation appear to address evidence relating to a hostile work environment — instead, it appears to have been limited to assessing the Plaintiff's disparate treatment and retaliation claims. See EEOC Explanation Letter ("The evidence obtained in the investigation of the [EEOC Charge] thus far does not support your allegation of sex and/or retaliation discrimination. Respondent has met its burden of articulating a legitimate, non-discriminatory reason for its action. . . ."). Accordingly, the Plaintiff's hostile work environment claim must be dismissed. See Zezulewicz, 290 F. Supp.2d at 591 ("If the plaintiff fails to exhaust administrative remedies her claims can be dismissed.").
Even if the court were to reach the merits of the hostile work claim, the Plaintiff has failed to put forth sufficient evidence to state a prima facie case. See Shramban v. Aetna, 262 F. Supp.2d 531, 535 (E.D. Pa. 2003) (to establish a sexually hostile work environment, the plaintiff must prove: "(1) the employee suffered intentional discrimination because of [membership in a protected class]; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the Plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same [protected group] in the same position; and (5) the existence of respondeat superior liability.") (citing Kunin v. Sears Roebuck Co., 175 F.3d 289, 295 (3d Cir. 1999)). The Plaintiff bald assertion that she was subjected to continuous "degrading, hostile comments," referencing two undated events — Janco's "telling [the plaintiff] to `lick my fingers' after he ate a cinnamon roll during a meeting, and to speak softly in the office, " see Visnikar Decl. ¶ 8 — even if taken as true, are not sufficiently "pervasive and regular" enough to constitute a hostile work environment. See Shesko v. City of Coatesville, 292 F. Supp.2d 719, 725-26 (E.D. Pa. 2003) (holding that "based on the totality of circumstances, [the following complained-of conduct, in addition to failure to promote claims] is not sufficiently pervasive and regular" to establish a claim for a sexually hostile work environment: "approximately three of Plaintiff's co-employees have referred to her as either a `bitch' or `cunt' behind her back; an officer told Plaintiff that he overheard a conversation in which [co-workers] stated that women police officers were `glorified dispatchers' and didn't belong in police work; one of Plaintiff's fellow sergeants asked Plaintiff is it was `that time of the month' and called her an `hysterical female'; [on occasion] Plaintiff found pornographic material in the visor of the patrol car she shares with other sergeants [and] in the women's restroom; [her superior] told Plaintiff a story about how he believed his son had sex with a woman who later became a police officer and lost a sexual harassment claim . . . and told Plaintiff about a program he was listening to about sexually transmitted diseases among women in Plaintiff's age group"); Cooper-Nicholas v. City of Chester, 1997 WL 799443, *3-4 (E.D. Pa. Dec. 30, 1997) (holding that plaintiff's work environment was not severely hostile where plaintiff's supervisor consistently made disparaging, vulgar, and offensive comments at office gatherings including: telling an employee, on three occasions, a story about plaintiff's sorority sister who had tried to rape him in college; referring to another employee as "a CW," a "crotch-watcher," and that "she just has to have my body," and "look how she's watching me"; telling an employee that she was fornicating with her fiance, and that he have to would marry her; stating to an employee "whoremongers like you . . . will never get things like this"; telling an employee that his secretary was "doing the wild thing" at lunch; commenting on an employee having a baby out of wedlock; and noting an employee who wore skirts with slits and calling her a "whoremonger")
Nor does the EEOC Charge fairly encompass the Plaintiff's claims relating to the 1999 Promotion Denial. Both the Date Box, and the narrative portions of the charge identify the harm as occurring in April 2001 — the date when Draper and Swansboro were promoted, and she was notified thereof. See EEOC Charge. At best, the mention of the 1999 Promotion Denial was provided as background to explain the factual basis of the Plaintiff's retaliation claim. Thus, the Plaintiff's claims based on the 1999 Promotion Denial must also be dismissed. See Zezulewicz, 290 F. Supp.2d at 591.
These claims must also be dismissed as time-barred, as the EEOC complaint was filed long after the 180-day filing period required under Title VII and the PHRA. See West v. Philadelphia, 45 F.3d 744, 754 n. 8 (3d Cir. 1995) (noting that where plaintiff chooses to initially file charges with the EEOC that is later cross-filed with local agency, the applicable filing period is 180 days) (citing 42 U.S.C. § 2000e-5(e)). In this regard, the Plaintiff argues that the continuing violations doctrine preserves these claims. See Pl.'s Br. at 5-6. In supporting this position, the Plaintiff argues that the body of the charge "clearly recites an ongoing pattern and practice of discrimination . . . [including] among other things, a violation of the Equal Pay Act, denial of promotion [the 1999 Promotion Denial], retaliation for filing a grievance, and although she was assigned `Senior Geologist' in 1997 and required to train two less senior males, they were promoted in 2001 while she remains at the same pay grade she has held since 1993." See id. The Third Circuit Court has squarely rejected this argument. See Rush v. Scott Specialty Gases, Inc., 113 F.3d 476, 483-84 (3d Cir. 1997) (holding that district court erred by treating failure to promote claims as a continuing violation, despite Plaintiff having alleged ongoing disparate treatment and harassment, stating that failure to promote claims comprised discrete instances of discrimination and "[we]re not susceptible to a continuing violations analysis"). District courts in Pennsylvania have also consistently reached the same conclusion. See, e.g., Ryan v. Gen. Mach. Prods., 277 F. Supp.2d 585, 592-93 (E.D. Pa. 2003) (holding that repeated promotion denials over the course of twelve years, and occuring outside the filing peried, were time-barred, stating, "if [the plaintiff] had wanted to challenge these alleged discriminatory failures to promote, she was required timely to file charges with the EEOC or the PHRC . . . [h]er failure to do so was fatal, and these stale claims cannot be resuscitated by the continuing violation theory");Kovoor v. Sch. Dist. of Philadelphia, 211 F. Supp.2d 614, 622 (E.D. Pa. 2002) (holding, in case where plaintiff was annually denied promotions over the course of several years, that the failure to be considered for or receive a promotion was "a discrete claim" that triggered a duty to file a complaint under Title VII; therefore, "plaintiff [could not] rely on a series of failures to promote to extend the relevant statutory period, because each individual rejection . . . was actionable under the civil rights laws"); Allen v. Best Foods Baking Co., 2003 WL 22858351, *4 (E.D.Pa., Oct 22, 2003) (noting same). The 1999 Promotion Denial triggered a duty file a charge with the EEOC and the Plaintiff simply failed to do so; therefore, these claims must be dismissed. See Rush, 113 F.3d at 485 (stating "to allow a stale claim to proceed would be inconsistent with the administrative procedure established by Title VII which contemplates prompt filing of charges so that discrimination controversies may be resolved promptly") (citation omitted).
The undersigned therefore finds that the Plaintiff's claims are restricted to those relating to the 2001 Failure to Promote — as they represent the only claims that are "fairly within the scope" of the EEOC Charge. The court's analysis may therefore be limited to whether the 2001 Failure to Promote constitutes discrimination based on gender and/or retaliation under Title VII and the PHRA. To the extent that there are other claims raised by the Plaintiff, they must be dismissed for failure to exhaust administrative remedies.
The undersigned need not reach the other potential issue of whether the claims against the individual Defendants are also barred based on the Plaintiff's failure to identify those parties in her EEOC Charge. See, e.g, Catagnus v. Aramark Corp., 235 F. Supp.2d 413, 416 (E.D. Pa. 2002) (stating "an action under Title VII and/or the PHRA may only be brought against a party previously named in a charge filed with the appropriate administrative agency") (citations omitted); see also EEOC Charge (naming only the DEP as the respondent). As the court concludes that the Plaintiff has failed to state a claim under Title VII and the PHRA, see discussion, infra, at 18-35, the issue is moot.
b. The Plaintiff Has Failed to State a Failure to Promote Claim under Title VII or the PHRA Based on Gender.
Failure to promote claims brought under Title VII are analyzed under the familiar burden-shifting framework the Supreme Court articulated inMcDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)("theMcDonnell Douglas analysis"). See, e.g., Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). As the Third Circuit Court has summarized, the McDonnell Douglas analysis proceeds in three stages. See Jones v. Sch. Dist. of Philadelphia, 198 F.3d 403, 410 (3d Cir. 1999). First, "the plaintiff must establish a prima facie case of discrimination." See id. Second, "[i]f the plaintiff succeeds in establishing a prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the employee's rejection." See id. (citation and internal quotations omitted). Finally, "should the defendant carry this burden, the plaintiff then must have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." See id. (citation omitted).
Discrimination claims brought under the PHRA are analyzed under the same standards as their federal counterparts. See Connors v. Chrysler Fin. Corp., 160 F.3d 971, 972 (3d Cir. 1998). Thus, the court's determination of whether the Defendants' conduct — including the claims based on gender discrimination and retaliation — violated Title VII is dispositive of the Plaintiff's claims under PHRA as well. See Zezulewicz v. Port Auth. of Allegheny County, 290 F. Supp.2d 583, 601 (W.D. Pa. 2003).
The Third Circuit Court has further explained that "[w]hile the burden of production may shift, the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." See id. (citation and internal quotations omitted). In addition, the Third Circuit Court's experience "is that most cases turn on the third stage, i.e., can the plaintiff establish pretext." See id.
Here, the Defendants argue that the Plaintiff has failed to establish a prima facie case. See generally Defs.' Br. at 8-16. In the alternative — and to the extent the court concludes that a prima facie case has been established — they argue that they have presented a legitimate, non-discriminatory reason for the Plaintiff's rejection. See id. They further maintain that the Plaintiff has failed to come forth with evidence proving that their reason was a pretext. See id. For the reasons stated below, the undersigned agrees with the Defendants in all regards.
To establish a prima facie case, the plaintiff must show:(1) that she belongs to a protected class; (2) that she sought and was qualified for the promotion; (3) that despite her qualifications she was rejected; and (4) the failure to promote occurred under circumstances "that give rise to an inference of unlawful discrimination" — i.e., a "non-member of the protected class was treated more favorably." See, e.g., Jones, 198 F.3d at 410-11; Young v. Pennsauken Township Sch. Dist., 47 Fed.Appx. 160, 161 (3d Cir. Sept 27, 2002);Shesko v. City of Coatesville, 292 F. Supp. 719, 724 (E.D. Pa. 2003).
In its two-fold challenge to the Plaintiff's prima facie case, the Defendants argue: (1) that the Plaintiff was not qualified for the position of "Licensed Professional Geologist" as she did have a geologist's licence; and (2) that the Plaintiff has failed to point out similarly situated males — that is, unlicenced male geologists — who received more favorable treatment. See Defs.' Br. at 12-16. The undersigned need not reach the second argument, as the court finds that the Plaintiff does not possess the objective qualifications required for the position of Licensed Professional Geologist.
Further, the Defendants' arguments relating to whether similarly situated individuals from non-protected classes received more favorable treatment is premature in the prima facie stage of theMcDonnell Douglas analysis, and is better addressed at the pretext stage. See Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 646 (noting that the elements of prima facie case are not intended to "onerous," and reserving the similarly situated analysis for the pretext stage, where "the factual inquiry into the alleged discriminatory motives of the employer has risen to a new level of specificity").
The Plaintiff does not dispute that the position that she sought required a license, and that she did not have one. See Visnikar Dep. at 76 ("Q: And that would be a licensed professional geologist position that you're seeking? A: Right"); see id. at 57 ("Q: And do you have a license? A: No."). Instead, the Plaintiff contends that, notwithstanding the licensing requirement, she was as qualified if not more qualified than her peers who were promoted. See Pl.'s Br. at 5-8 (noting, among other things: that the Plaintiff was more senior than the co-workers who were promoted; that she had trained these co-workers; and that she received exceptional reviews for the relevant years).
The Third Circuit Court has made clear, however, that within the context of assessing a prima facie case, a district court must view a plaintiff's "qualifications" based on objective criteria. See Goosby v. Johnson Johnson Med., Inc., 228 F.3d 313, 320 (3d Cir. 2000) (stating "[w]e have held that . . . objective job qualifications should be considered in evaluating a plaintiff's prima facie case . . .") (citation omitted); Sempier v. Johnson Higgins, 45 F.3d 724, 729 (3d Cir. 1995) (noting "[w]e determine a plaintiff's qualifications from the purposes of proving a prima facie case by an objective standard.") (citation omitted). Thus, the Plaintiff's own subjective opinion that she was qualified for a given position — including the assertions listed above — is immaterial. See Kepple v. GPU Inc., 2 F. Supp.2d 730, 741 (W.D. Pa. 1998) (stating "[t]he employer is entitled to establish the job requirements and the plaintiff must offer more than his own opinion that he is qualified") (citing In re Carnegie Ctr. Assocs., 129 F.3d 290, 293 (3d Cir. 1997)). As the unrefuted evidence demonstrates that the Plaintiff simply does [not] meet the objective criterion required for the position of Licensed Professional Geologist, the undersigned concludes that the Plaintiff is not "qualified" and therefore has failed to establish a prima facie case.
Nonetheless, this is not the sole basis for granting summary judgment in this case. The undersigned recognizes there may be certain instances where an employer's creation of new qualifications — such as the addition of the licensing requirement pursuant to the 2001 Reclassification — could be "self-serving." See Chu v. Samuel Geltman Co., 1993 WL 492747, *4 (E.D. Pa. Nov. 17, 1993) (concluding that although plaintiff did not have valid Pennsylvania real estate license required for the position and was thus not qualified, it was proper to evaluate defendant's non-discriminatory reason and pretext plaintiff in the event that the licensing requirement was a "sham"). The court will, therefore, analyze the Defendants' proffered reason and the Plaintiff's evidence of pretext.
The Defendants have met their burden of articulating a legitimate reason — again, that the Plaintiff was not qualified for the position due to the fact that she did not have a license, see Defs.' Br. at 13 — therefore the onus rebounds to the Plaintiff, who must now show by a preponderance of the evidence that the DEP's explanation was pretextual. See Fuentes, 32 F.3d at 763 (stating "[o]nce the employer answers its relatively light burden by articulating a legitimate reason for the unfavorable employment decision, the burden of production rebounds to the plaintiff, who must now show by a preponderance of the evidence that the employer's explanation is pretextual (thus meeting the plaintiff's burden of persuasion)").
To defeat summary judgment at this stage, the Plaintiff must either: (1) point to some evidence that discredits the proffered reasons, either circumstantially or directly; or (2) adduce evidence, whether circumstantial or direct, that discrimination was more likely than not a motivation or determinative cause of the adverse employment action. See id. at 764. For the reasons stated below, the undersigned concludes that the Plaintiff has failed to meet its burden.
To discredit the Defendants' proffered reason, "a plaintiff cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether the discriminatory animus motivated the employer, not whether the employer is wise, shrew, prudent, or competent." See Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1109 (3d Cir. 1996) (citations omitted). Instead, she must cast sufficient doubt upon the employer's reason by demonstrating "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered reason for its action that a reasonable factfinder could rationally find them unworthy of credence." See Jones, 198 F.3d at 413 (citation omitted). As the Third Circuit Court has summarized: "federal courts are not arbitral boards ruling on the strength of [the] `cause' for [the adverse employment action]. The question is not whether the employer made the best, or even a sound, business decision; it is whether the real reason is discrimination." See Keller, 130 F.3d at 1109 (citation omitted). Moreover, "the plaintiff must show, not merely that the employer's proffered reason was wrong, but that it was so plainly wrong that it cannot have been the employer's real reason." See id.
In this regard, the Plaintiff attempts to discredit the licensing requirement by alleging that there "is some question" as to whether a Pennsylvania law requires that geologists be licensed. See Pl.'s Br. at 7 n. 2. The Plaintiff has attached an exhibit identified as the Commonwealth of Pennsylvania's "Engineer, Land Surveyor and Geologist Registration Law, Act 367" issued by the "State Registration Board for Professional Engineers, Land Surveyors, and Geologists." See Engineer, Land Surveyor and Geologist Registration Law, Act 367 (attached as Ex. I to Pl.'s Exs.). The Plaintiff contends that under Section 5 of these provisions, oil and gas geologists are exempt from licensure and registration requirements. See Pl.'s Br. at 7 n. 2.
Although that very well may be the case, it remains unrefuted that pursuant to the 2001 Reclassification, it was the DEP's policy that a license was required to assume the position that the Plaintiff sought. See discussion, supra, at 7-8, 20-22. The fact that such a requirement was not mandated by law is simply not sufficient to create the inference that the licensing requirement was "superficial," "irrational," or otherwise "unworthy of credence." See Chu, 1993 WL 492747 at *5 (holding that the fact that Pennsylvania law did not require a real estate license did not demonstrate pretext where "it was [defendant employer's] policy that full-time rental managers [the position the plaintiff sought] should have a real estate license"). Nor has the Plaintiff cited authority suggesting that the DEP was not authorized to impose qualification requirements above and beyond those required under the relevant law. As stated above, the court is forbidden from assessing the propriety of the DEP's decision to add a licensing requirement — the question being only whether the Defendants' actions were motivated by discriminatory animus. See, e.g., cases discussed, supra, at 23-24; see also Lewis v. State of Del. Dep't Of Pub. Instruction, 948 F. Supp. 352 (D. Del. 1996) (stating "an employer is free to ruin his business with medieval practices, so long as those practices are not motivated by discriminatory animus"). The undersigned concludes that the Plaintiff has failed to meet this burden.
The court may therefore limit its analysis to whether the Plaintiff has adduced sufficient evidence from which a factfinder could reasonably conclude that discrimination was more likely than not a motivation or determinative cause of the adverse employment action. See Fuentes, 32 F.3d at 765. Under this analysis, the Plaintiff may show, for example, that "the employer in the past had subjected him to unlawful discriminatory treatment, that the employer treated other, similarly situated persons not of his protected class more favorably, or that the employer has discriminated against other members of his protected class or other protected categories of persons." See id.
The Plaintiff's primary argument is that Draper and Swansboro, the two less senior co-workers whom she trained were promoted in 2001; whereas she remained at the same level despite receiving exceptional reviews, and being named as "Senior Geologist." See Pl.'s Br. at 5-6. She maintains that the promotion of these allegedly similarly-situated males clearly demonstrates pretext. See id. at 7. The Defendants, in turn, contend that the comparison to Draper and Swansboro is unpersuasive, as both Draper and Swansboro are both licensed geologists, and therefore not similarly situated. The undersigned agrees.
The Defendants' briefing also identifies Susan Banks as a third comparator; however, the Plaintiff's opposition brief does not rely upon that comparison. See Pl.'s Br. at 5-8. As the Plaintiff bears the burden of showing evidence of pretext at this stage, see Simpson, 142 F.3d at 645 (stating "plaintiff has the burden of demonstrating that similarly situated persons were treated differently"), the court will follow the Plaintiff's lead and not address that comparison. Nor does the undersigned believe that such a comparison would affect the court's analysis.
The Third Circuit Court has stated "[i]n determining whether similarly situated nonmembers of a protected class were treated more favorably that a member of the protected class, the focus is on the particular criteria or qualifications identified by the employer as the reason for the adverse action." See Simpson, 142 F.3d at 647 (citation omitted; emphasis added). Moreover, "the plaintiff must point to evidence from which a factfinder could reasonable infer . . . that the employer did not actually rely upon the stated criterion." See id. (citation omitted).
Here, to meet this standard, the Plaintiff would have to establish that unlicensed male geologists — licensing being the criterion articulated by the Defendants as its nondiscriminatory reason — received more favorable treatment. The Plaintiff has failed to do so. In fact, the comparison to Draper and Swansboro negate, rather than advance, the Plaintiff's position. The fact that licensed geologists were promoted, and unlicensed geologists were not, serves to confirm that the Defendants decision did, in fact rely "upon the stated criterion." See id.
The Plaintiff's recitation of other qualifications have no bearing on the court's analysis, as the Defendants have identified licensing as the sole basis for its decision. See id. (stating "[t]he employee's positive performance in another category is not . . . relevant, [nor] is the employee's judgment as to the importance of the stated criterion.") (citations omitted); see also Ezold v. Wolf, Block, Schorr Solis-Cohen, 983 F.2d 509, 528-29 (3d Cir. 1993) (finding that plaintiff's abilities in areas other than legal analysis, the reason identified for not promoting plaintiff, was not relevant in determining pretext). Thus, the Plaintiff's positive reviews, assignment to a senior position, and training skills, though admirable, cannot serve as evidence of pretext in this case. See Simpson, 142 F.3d at 647 ("the court does not subjectively weigh factors its considers important.").
In addition, recognizing the Third Circuit Court's admonition to district courts that "the evidence cannot be viewed in a vacuum," see id. at 646-47 (citations omitted), the undersigned finds that a global view of the record confirms the absence of pretext.
The Defendants have submitted a document entitled "Professional Geologist Implementation," see Implementation Chart, which, according to the Defendants, illustrates the different reclassifications for various geologists working for the Commonwealth of Pennsylvania pursuant to the 2001 Reclassification. See Defs.' Br. at 13-14. The undersigned finds it significant that, while the Plaintiff has addressed two male co-workers she believes were treated more favorably, the Plaintiff's Brief does not identify or compare the Plaintiff to any of the approximately 150 other employees whose positions were reclassified. See Implementation Chart. In fact, a cursory inspection of this document reveals that there were males who were reclassified as "Geologic Specialist," see id. at 2-3 (chart entitled "Lateral Reclassification to Geologic Specialist"), as well as females who were promoted to "Licensed Professional Geologist," see id. at 6 (chart entitled "Promotion to Licensed Professional Geologist").
The Plaintiff does not challenge the authenticity of the document, nor does she challenge its accuracy. The undersigned therefore concludes that it may properly consider it.
The Third Circuit Court has noted under similar circumstances that a plaintiff "cannot pick and choose a person she believes is a valid comparator who was allegedly treated more favorably, and completely ignore a significant group of [potential] comparators who were treated equally or less favorably than she." See Simpson, 142 F.3d at 646-47. Accordingly, the undersigned finds that the Plaintiff has failed to meet its burden of showing pretext based on the comparison to only a select few of the her co-workers, while neglecting the vast majority.
The Plaintiff's other argument relates to the events following the 1999 Promotion Denial, and leading up to the 2001 Failure to Promote. The Plaintiff contends that an inference of discrimination can be drawn from the fact that after she was denied a promotion in 1999, Flaherty deliberately concealed information, that if known, would have allowed the Plaintiff to obtain a license and thus be qualified for the promotion in 2001. See Pl.'s Br. at 6-7 (arguing that, following the 1999 Promotion Denial, "[w]hat [Flaherty] failed to mention was that he knew: 1) that the 2001 [R]eclassification would eventually make `licensure' mandatory . . .; 2) that Melissa was not `licensed'; 3) that she would not have the opportunity to be `grandfathered in' as the `grandfathering in' procedure would no longer be available; and 4) therefore, she would not be promoted after the reclassifications because she was not `licensed.'") (citation omitted).
This argument fails on at least two levels. First, the Plaintiff's theory finds no support in the portions of the record she identifies as relevant. See Pl.'s Br. at 7 (citing Flaherty Dep. at 33, 41-43). Nor can she rely solely on her own declaration to establish these facts. See id. (citing Visnikar Decl.); Longstreet v. Holy Spirit Hospital, 67 Fed.Appx. 123, 126 (3d Cir. May 22, 2003) ("unsupported assertions, speculation, or conclusory allegations" are insufficient to avoid summary judgment) (citation omitted). Second, the Defendants have submitted evidence demonstrating that the 2001 Reclassification was the product of negotiations between the Commonwealth of Pennsylvania and the Plaintiff's union. See Reclassification Letter. The Plaintiff has not identified — nor is the court aware of — any authority imposing an affirmative duty on an employer to speculate as to what qualifications these entities may find necessary in regard to a prospective reclassification, or to ensure that each employee who falls within a protected class will meet that those criteria. See Ezold, 983 F.2d at 531 ("Title VII, however, does not demand that an employer give preferential treatment to . . . women.") (citation omitted). At some point, the impetus must fall upon the employee to obtain the necessary credentials — even if they are obtained by the perfunctory gesture of filing an application with the state.
The Plaintiff has not offered any explanation as to why she never submitted the necessary paperwork under the grandfathering system to obtain a geologist license at any point between 1998, when she ostensibly would have had the necessary five years of experience under the system, and 2001 Reclassification.
Having carefully considered the parties' arguments and submissions, the undersigned concludes that the Plaintiff has failed to meet its burden of showing that the Defendants' proffered reason is pretext. For all the reasons stated above, the Defendants' Motion should be granted.
c. The Plaintiff Has Failed to State a Failure to Promote Claim under Title VII or the PHRA Based on Retaliation.
Retaliation claims under Title VII involve the same McDonnell Douglas burden-shifting analysis as outlined above. See discussion, supra, at 18-19; see also Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 187 (3d Cir. 2003). To establish a prima facie case of retaliation, the plaintiff must show: 1) she engaged in a protected activity; 2) the employer took an adverse employment action either after or contemporaneous with the employee's protected activity; and 3) a causal connection between the employee's protected activity and the employer's adverse employment action. See Shellenberger, 318 F.3d at 187 (citing Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997)).
Here, the Plaintiff has failed to proffer sufficient evidence to establish a prima facie case — more specifically, the Plaintiff has failed to demonstrate a causal link between the filing of the 1999 Greivance and the 2001 Failure to Promote. To establish such a link, the Plaintiff must show either temporal proximity between the events or some other evidence suggesting causation, such as an ongoing pattern of antagonism. See, e.g.,Hartman v. Sterling, 2003 WL 22358548, *10 (E.D. Pa. Sept. 10, 2003) (after reviewing Third Circuit case law, stating "[u]nless the temporal proximity is `unusually suggestive,' it, taken alone, is insufficient to establish the necessary connection. . . .[Instead,] timing plus other evidence [such as a pattern of antagonism] is the appropriate test"); see also Robinson v. City of Pittsburgh, 120 F.3d 1286, 1302 (3d. Cir. 1997) ("[T]he mere fact that [an] adverse employment action occurs after a complaint will ordinarily be insufficient to satisfy the plaintiff's burden of demonstrating a causal link between the two events") (citation omitted).
Here, over two years elapsed between the two events. See Krouse, 126 F.3d 503-04 (concluding that nineteen months between the alleged retaliation and the protected activity was too great a passage of time to draw an inference of causation without other evidence of causation). Nor does the record demonstrate an ongoing pattern of antagonism towards the Plaintiff based on the retaliatory animus. The Plaintiff's unsupported allegations that she was subjected to "degrading, hostile comments" are do not persuade the court otherwise. See Longstreet v. Holy Spirit Hospital, 67 Fed.Appx. 123, 126 (3d Cir. May 22, 2003) ("unsupported assertions, speculation, or conclusory allegations" are insufficient to withstand summary judgment) (citation omitted). When viewed as a whole, the record simply does not support a finding of causation. See, e.g., Woodson v. Scott Paper, 109 F.3d 913, 920 (3d Cir. 1997) (stating that in regard to whether evidence is sufficient to establish causation, district courts must make determinations "based on the whole picture") (citation omitted). Thus, the record fails to demonstrate the elements of a prima facie case of retaliation.
Even if the court were to conclude that a prima facie case had been established, the Plaintiff's claims nevertheless must fail based on the second and third prong of the McDonnell Douglas analysis. For the same reasons identified in the previous analysis regarding the Plaintiff's gender discrimination claims, see discussion, supra, at 22-34, which rest on the same adverse employment action, the court finds that the Plaintiff has failed to show that the licensing requirement was a mere pretext for retaliatory animus. Thus, the Plaintiff's relation claims must be dismissed.
For all the reasons stated above, the Plaintiff has failed to state a claim under Title VII and the PHRA, based on either gender and/or retaliation; accordingly, summary judgment should be granted in favor of the Defendants.
This conclusion resolves the Plaintiff's aiding and abetting claims under the PHRA as well. As the Plaintiff has failed to state a claim under Title VII or the PHRA, these additional claims must also be dismissed. See, e.g., Varela v. Philadelphia Neighborhood Hous. Servs., Inc., 68 F. Supp.2d 575, 584 (E.D. Pa. 1999) (holding that where the court granted summary judgment on the plaintiff's claim of unlawful discrimination against state agency, the plaintiff's aiding and abetting claim against an individual defendant under the PHRA also failed); see also, e.g., Atkinson v. Lafayette College, 2003 WL 21956416, * 10 (E.D. Pa., Jul 24, 2003) (dismissing aiding and abetting claims against individual defendant where court found defendant college/employer had not violated PHRA).
2. The Plaintiff Has Failed to State a Claim Under the EPA.
Before reaching the merits of the Plaintiff's cause of action under the EPA, the Defendants put forth extensive arguments maintaining that EPA claims brought against a governmental agency, such as the DEP, are barred by the states' sovereign immunity under the Eleventh Amendment. See Defs.' Br. at 18-22. These arguments border on frivolous. The Third Circuit Court has made clear that states are not immune from claims brought under the disparate wage provisions of the EPA. See Arnold v. BlaST Intermediate Unit 17, 843 F.2d 122, 126 (3d Cir. 1988) ("Further, it is well established that Congress intended to abrogate state immunity from suit in applying the [EPA's] provision[s] to state or local entities in their role as employers.") (citations omitted).
The Third Circuit Court's approach represents that majority view, and, in fact, is consistent with the decisions from every circuit that has ruled on the issue. See, e.g., Siler-Khodr v. Univ. of Tex. Health Sci. Ctr. San Antonio, 261 F.3d 542, 550-51 (5th Cir. 2001) (holding that a state was not entitled to Eleventh Amendment immunity for claims brought under the EPA); Cherry v. Univ. of Wisc. Sys. Bd. of Regents, 265 F.3d 541, 553 (7th Cir. 2001) (holding that the Eleventh Amendment immunity did not bar plaintiff's gender-based disparate pay claims against state employers brought under the EPA);Kovacevich v. Kent State Univ., 224 F.3d 806, 820-21 (6th Cir. 2000) (holding that "Congress's abrogation of state immunity pursuant to the EPA is . . . proper, and [the state defendants'] alleged violation of the EPA is not shielded by the Eleventh Amendment"); Hundertmark v. Fla. Dep't of Transp., 205 F.3d 1272, 1274 (11th Cir. 2000) (affirming district court's ruling that "Congress had amended the Equal Pay Act and abrogated the States' sovereign immunity pursuant to [Section] 5 of the Fourteen Amendment and therefore the Eleventh Amendment did not bar an action against the State in Federal Court");O'Sullivan v. Minn., 191 F.3d 965, 967-68 (8th Cir. 1999) (stating "[w]e join every court of appeals that has decided the issue and hold Congress properly abrogated the states' sovereign immunity when it enacted the EPA," and noting the contrast to lawsuits brought under the other provisions of the Fair Labor Standard Act, where sovereign immunity applies) (citations omitted). The undersigned will therefore reach the merits of the Plaintiff's claims.
Claims brought under the disparate wage provisions of the EPA follow a two-step burden-shifting paradigm. See, e.g., Stanziale v. Jargowsky, 200 F.3d 101, 107 (3d Cir. 2000); Ryan v. Gen. Mach. Prods., 277 F. Supp.2d 585, 596 (E.D. Pa. 2003); Velez v. QVC, Inc., 227 F. Supp.2d 384, 420 (E.D. Pa. 2002). The plaintiff must first establish a prima facie case by demonstrating that employees of the opposite sex were paid differently for performing "equal work" — that is, work of "substantially equal skill, effort and responsibility, under similar working conditions." See Stanziale, 200 F.3d at 107 (citation omitted). Once met, the burden of persuasion then shifts to the employer to demonstrate the applicability of one of the four affirmative defenses available under the EPA: (1) a bona fide seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality of production; or (4) a differential based on any factor other than sex. See id. (citations omitted). In order to prevail at the summary judgment stage, the employer must prove at least one affirmative defense "so clearly that no rational jury could find to the contrary." See id. at 108. In addition, the defendant employer must produce sufficient evidence from which a reasonable factfinder could conclude that the proffered reasons not only could explain, but did in fact motivate, the wage disparity. See id. at 107-08 (citations omitted).
The facts underpinning the Plaintiff's EPA claims are virtually identical to those forming the basis of her Title VII action. Compare Pl.'s Br. at 5-8 (discussing Title VII claims) with Pl.'s Br. at 4 (discussing EPA claims). Moreover, the Plaintiff alleges that two of her male co-workers, Draper and Swansboro — who performed "equal work" at the DEP — were moved to paygrade 8 pursuant to the 2001 Reclassification, while she remains at paygrade 7. According to the Plaintiff's submissions, the difference between these two paygrades amounts to $4147.00 annually. See Chart (attached as Ex. F4 to Pl.'s Ex.) at 2.
While the court has concluded that the Plaintiff's allegations relating to the disparity in starting salaries cannot be considered, see discussion, supra, at 9 n. 8, these allegations would nonetheless be unavailing were the court to merits of that claim. As the court aptly explained in Bielawski v. AMI, Inc., 870 F. Supp. 771, 776 (N.D. Ohio 1994), a female plaintiff cannot base an EPA claim on the comparison to a higher-paid male employee who was hired subsequent to commencement of her employment. It reasoned:
If a plaintiff could make out a prima facie case under the Act whenever her employer paid current employees more than prior employees of the opposite sex, the Act would effectively deter pay raises after the prior employee left the employer. . . . Given that it is to be expected that inflationary pressures will cause wages to rise over time, such a reading of the statute is untenable. . . .
This position is bolstered by the fact that § 206(d)(1) is written in the present tense. The plain meaning of the statute is that it applies to cases in which the employer "pays" employees of one gender less than contemporary employees of the opposite sex performing the same job.See id. (emphasis added). The undersigned finds this approach to be well reasoned and thus adopts it. Accordingly, as Draper and Swanboro were hired in the year (1993) following the year the Plaintiff was hired (1992), the Plaintiff cannot establish a prima facie case based on this evidence alone.
As a threshold matter, the undersigned recognizes that the standards in establishing a prima facie under the EPA and Title VII are generally read harmoniously. See Ryan, 277 F. Supp.2d at 595 n. 7. Accordingly, the undersigned has serious doubts, for the reasons identified in its Title VII analysis, see discussion, supra, at 20-22, as to whether a prima facie has been established under the EPA — namely, whether the Plaintiff has drawn an appropriate comparison to Draper and Swansboro in light of the fact that those employees have geologist's licenses. Nonetheless, as the undersigned concludes that the Defendants have established that the pay differential was based on a "factor other than sex," the court need not dwell on this issue and will assume that a prima facie case has been established.
The Defendants argue that the salaries of the Plaintiff and her co-workers were the result of collective bargaining between the Commonwealth of Pennsylvania and the Plaintiff's union. See Defs.' Br. at 5-8; see also Reclassification Letter. As such, disparity in wages between the Plaintiff and her co-workers can only be attributed to the collective bargaining process, which constitutes a "factor other than sex." The case law confirms this theory, and the Plaintiff has failed to identify a single case to the contrary. See id. Lang v. Kohl's Food Stores, Inc., 217 F.3d 919, 925 (7th Cir. 2000) (affirming district court's granting summary judgment on plaintiff's EPA claims where "classifications and wages are the result of collective bargaining . . .[l]abor agreements frequently apply to all of an employer's sites, and these agreements are `factor[s] other than sex'"); Lissak v. U.S., 49 Fed.Cl 281, 286 (Fed.Cl. 2001) (granting summary judgment in favor of defendant on EPA claims, stating "[d]efendant's system of differing pay and classification rules, which resulted from a series of collective bargaining agreements, is a bona-fide, gender-neutral, acceptable personnel policy that constitutes a factor other than sex under the Act[,]" and that "[t]he pay disparity between the plaintiffs and their male co-workers resulted from a personnel policy in which gender played no part"); Cherrey v. Thompson Steel Co., 805 F. Supp. 1257, (D. Md. 1992) (granting defendant's motion for judgment on partial findings in regard to plaintiff's EPA claims, stating "[s]ince the Equal Pay Act permits employers to defend against charges base on a bona fide use of factors other than sex, the collective bargaining agreement negotiated with the union defeats this claim. . . .") (citation omitted, emphasis in original). The Defendants have met their burden of showing that the wage disparity was based on a factor other than sex; accordingly, the Defendants' Motion should be granted in the regard to the Plaintiff's EPA claims.
The Third Circuit Court has yet to address this theory; nonetheless, the undersigned finds the reasoning of these decisions persuasive, and chooses to follow them.
3. The Plaintiff Has Failed to State a Claim Under Section 1983.
It is well established that the Eleventh Amendment prohibits a plaintiff from bringing a Section 1983 action against a state or state agency. See, e.g., Dennison v. Pa. Dept. of Corrections, 268 F. Supp.2d 387, 396 (M.D. Pa. 2003) (holding the Pennsylvania Department of Corrections was immune from Section 1983 suit, stating "[the] Eleventh Amendment bars suit[s] in federal court against states and their subordinate agencies.") (citation omitted);Zelinski v. Pa. State Police, 282 F. Supp.2d 251, 264 (M.D. Pa. 2003) (granting summary judgment in favor of Commonwealth of Pennsylvania and state police on Section 1983 claims, stating "[Section] 1983 does not override State's Eleventh Amendment immunity") (citation omitted);Taylor v. County of Berks, 2003 WL 22078455, *1 (E.D. Pa. Sept. 2, 2003) ("It is clear that suits brought under [Section] 1983 against [state] agencies are barred by the Eleventh Amendment") (citations omitted). The DEP is a state agency, and therefore enjoys such immunity. See Khodora Envtl., Inc. Ex Rel. Eagle Envtl., L.P. v. Burch, 245 F. Supp.2d 695, 710 (W.D. Pa. 2002) (concluding that plaintiff was barred under Eleventh Amendment from pursuing case against the DEP) (citation omitted). Thus, the Plaintiff's Section 1983 claims, as they relates to the DEP, must be dismissed.
The claim must also be dismissed on the basis that the DEP is not a "person" as defined by Section 1983. See, e.g.,Zelinski, 282 F. Supp.2d at 264 n. 14 (holding that a state agency — the Pennsylvania State Police — did not constitute a person for the purposes of Section 1983).
The Eleventh Amendment also protects state officials acting in their official capacities. See, e.g., Dennison, 268 F. Supp.2d at 396 (granting summary judgment in favor of officials in Section 1983 action, stating "[o]fficial capacity suits are nothing more than suits against an official's employing agency") (citation omitted); see also, e.g., Gerber v. Sweeney, 2003 WL 1090187, * 3 (E.D. Pa. March 7, 2003) (holding individual official could not be sued for damages under Section 1983, stating "it is well established that state officials sued in their official capacities are not subject to damages liability under [S]ection 1983") (citation omitted); Accordingly, to the extent that the Section 1983 are brought against the individual Defendants in their official capacity, they must also be dismissed.
Nor are they "persons" under Section 1983. See Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 697 (3d Cir. 1996) ("[T]he Supreme Court [has] held that state officials acting in their official capacities are not `persons' under [Section] 1983.") (citation omitted).
The Plaintiff contends, however, that the Eleventh Amendment does not preclude Section 1983 claims against state officials if the suit is brought against them in their individual, as opposed to official, capacities. See Pl.'s Br. at 9. While counsel has correctly stated the law, see Helfrich v. Pa. Dep't of Military Affairs, 660 F.2d 88, 90 (3d Cir. 1981) and Zelinski, 282 F. Supp.2d at 264 n. 15, the Plaintiff's Complaint is far from clear as to the capacity in which the individual Defendants are being sued. See generally Compl., Caption Count II. Nonetheless, based on the facts that the Plaintiff has sought compensatory and punitive damages and that the Defendants have raised the issue of qualified immunity — and resolving all doubts in favor of the Plaintiff — the court concludes that the Eleventh Amendment does not foreclose the Plaintiff's individual-capacity claims against the individual Defendants. See Gregory v. Chehi, 843 F.2d 111, 119-20 (3d Cir. 1988) (assuming that individuals defendants were sued in their individual capacities where Plaintiff sought punitive as well as compensatory damages against them). Floyd v. Dugal, 2003 WL 23101802, *4 (E.D. Pa. Dec. 16, 2003) (holding that Eleventh Amendment did not bar Section 1983 action against individual defendants where, among other things, the complaint sought compensatory and punitive damages and defendants raised issue of qualified immunity).
Section 1983 imposes civil liability "upon any person who, under the color of state law, deprives another person of any rights, priviliges, or immunities secured by the Constitution or law of the United states." See S.G. ex rel A.G. v. Sayreville Bd. of Educ, 333 F.3d 417, 420 (3d Cir. 2003) (citing 42 U.S.C. § 1983). Thus, to bring a claim under Section 1983, a plaintiff must show: (1) "a violation of a right secured by the Constitution and law of the United States"; and (2) "that the defendant deprived him of these rights under the color of [state law]." See Warner v. Montgomery Township, 2002 WL 162774, *17 (E.D. Pa. July 22, 2002) (citations to district courts in Pennsylvania and United States Supreme Court omitted)
In order to impose personal liability upon a state official in his individual capacity, a plaintiff is further required to show each defendant's "personal involvement" in regard to the alleged deprivation. See Douris v. County of Bucks, 2001 WL 767579, *6 (E.D. Pa. July 3, 2001). That is, a plaintiff must "allege, and be prepared to prove, that [a given] defendant has been personally and directly involved in the alleged wrongful conduct or alternatively that the alleged wrongful conduct occurred with the defendants' actual knowledge and acquiescence." See id. (citing, inter alia, Rode v. Dellarciprete, 845 F.2d 1197, 1207 (3d Cir. 1988)); see also Jones v. Gardels, 2003 WL 22939477, *3 (D. Del. Mar. 27, 2003) (a plaintiff must establish "evidence of personal involvement, knowing acquiesence or participation of each Defendant") (citing Pennsylvania v. Porter, 659 F.2d 306, 336 (3d Cir. 1981)). Moreover, as the Third Circuit Court has stated, the "official's misconduct cannot be merely a failure to act . . .[s]uch officials must have played an affirmative role in the deprivation of the plaintiff's rights, i.e., there must be a causal link between the action of the responsible officials named and the challenged misconduct." See Porter, F.2d 306 at 336.
Here, the Plaintiff contends that "[t]he Defendants [including Erb, Flaherty, and Janco]. . . acting under the color of state law, subjected Plaintiff to continuous and ongoing, unlawful disparate treatment, harassment, a hostile work environment, discrimination and retaliation based on gender in violation of her civil rights." See Pl.'s Br. at 9. "At very least, the individual defendants, all of them supervisors and managers of the Plaintiff, should not escape liability for their unlawful actions." See id. Plaintiff's counsel goes no further in articulating the specific "affirmative role" on the part of each of the individual
Defendants that might establish the necessary "causal link" to the Plaintiff's alleged discriminatory treatment — nor does the Complaint itself, see Count II. In this context, a plaintiff "cannot rely only on unsupported assertions, conclusory allegations, or mere suspicions in order to survive summary judgment". See Warner, 2002 WL 162774, *17 (citation omitted). Accordingly, the undersigned finds that the Plaintiff has failed to meet its burden in establishing a claim against the individual Defendants under Section 1983; therefore, the claims should be dismissed. Accord, e.g., Andrew P. v. Bucks County Intermediate Unit, 2001 WL 1716993, * 5 (dismissing claims against the individual defendants in their individual capacities where plaintiff failed to assert "how the individual defendants were directly involved in the alleged violations, or that the individual defendants had actual knowledge of the violations, yet acquiesced in them"); Burke v. Dark, 2001 WL 238518 (E.D. Pa. Mar. 8, 2001) (holding same);Cropps v. Chester County Prison, 2001 WL 45762 (E.D. Pa. Jan. 19, 2001) (holding same).
Nor can the sole fact that the individual Defendants are "managers and supervisors" form the basis of liability. See Rode, 845 F.2d at 1207 ("[L]iability [under Section 1983] cannot be predicated solely on the operation of respondeat superior.").
Nonetheless, the Plaintiff should not be punished for the deficiencies in her counsel's pleadings and briefing. Moreover, an independent review of the record does cast some doubts as to the complete lack of participation by certain individual Defendants — particularly with regard to Flaherty and Janco. The undersigned will therefore engage in a brief independent analysis of those potential claims.
The Plaintiff has simply not identified any "affirmative role" played by Erb in the alleged violations, and the undersigned will not revisit those claims below. For the reasons already stated, the individual liability claims against Erb must be dismissed.
Borrowing from the Plaintiff's allegations raised in the context of her Title VII and PHRA claims, as well as the Plaintiff's exhibits, the court can identify the following relevant, personal conduct on the parts of Flaherty and Janco.
As to Flaherty, it appears that: (1) he played some role in the 1999 Promotion Denial, as he was responsible for filing the management initiated-reclassification documents necessary to promote the Plaintiff to the next paygrade; and (2) he filed the necessary documents for Swansboro and Draper pursuant to the 2001 Reclassification. See Pl.'s Br. at 6-8; Flaherty Dep. at 41-43.
In regard to Janco, deposition testimony indicates that he discussed matters relevant to the 1999 Promotion Denial with Flaherty. See Flaherty Dep. at 41-42. In addition, according to the Plaintiff's Declaration, Janco had made at least one inappropriate remark directed at the Plaintiff — that is, "telling [her] to `lick my fingers' after he ate a cinnamon roll during a meeting." See Visnikar Decl. ¶ 8.
Assuming these facts to be true, the court must determine whether they are sufficient to state a claim against either Defendant under Section 1983. For the reasons that follow, the undersigned concludes they are not.
First, the Defendants have raised the defense of qualified immunity. Qualified immunity shields government officials performing discretionary functions from civil damages liability as long as "their conduct does not violate clearly established statutory or constitutional rights that a reasonable person would have know." See Gruenke v. Seip, 225 F.3d 290, 299 (3d Cir. 2000) (citation omitted). To determine whether a plaintiff's claim will proceed, the court engages in a two-part inquiry: (1) whether "the plaintiff's allegations are sufficient to establish the violation of a constitutional or statutory right at all"; and (2) whether "the right that the defendant's conduct allegedly violates was a clearly established one, about which a reasonable person would have known." See S.G. ex rel A.G., 333 F.3d at 420 (citation omitted). If the plaintiff's allegations fail to satisfy either inquiry, then the defendant is entitled to summary judgment.
To the extent that the individual liability claims are based on the 1999 Promotion Denial and the 2001 Failure to Promote, the undersigned concludes that Flaherty and Janco are protected by qualified immunity. While perhaps short-sighted, and possibly unfair, the conduct alleged simply does not amount to an actionable violation of a constitutional or statutory right. See Douris, 2001 WL 767579 at *6 (noting "qualified immunity protects all but the plainly incompetent or those who knowingly violate the law") (quoting Anderson v. Creighton, 483 U.S. 635, 638 (1987)). As the court has already addressed these claims in detail in the context of its Title VII and PHRA analysis, and concluded that the same conduct did not constitute gender discrimination and/or retaliation, the undersigned need not revisit them here. See Stewart v. Rutgers, The State University, 120 F.3d 426, 432 (3d Cir. 1997) (acknowledging that same analytical framework for finding discrimination applies under Section 1983 and Title VII claims); see also McKay v. Delaware State University, 2000 WL 1481018, *11 (D. Del. Sept. 29, 2000) (holding same in context of failure to promote, retaliation, and hostile work environment claims brought under Title VII and Section 1983).
The undersigned notes that the 1999 Promotion Denial was not addressed on the merits in the previous analysis due to the Plaintiff's failure to exhaust administrative remedies and, alternatively, that it was time-barred. While the undersigned recognizes that these hindrances do not apply to claims under Section 1983, see, e.g,Singletary v. District of Columbia, 351 F.3d 519, 529 (D.C. Cir. 2003), the 1999 Promotion Denial does not amount to the violation of federal right. Applying the McDonnell Douglas framework, there are doubts as to whether a prima facie case has been established. Even if the Plaintiff had done so, she failed to meet her burden of showing that Flaherty's explanation — that her promotion would be denied until the 2001 Reclassification was implemented — was pretext. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
What remains, therefore, is the claim against Janco based on his inappropriate "cinnamon roll" remark. This statement, standing alone, fails to amount to a violation of a federal right, see discussion, supra, at 15 n. 10. Even if the court were to conclude otherwise, this claim would fail on the merits. To be actionable under Section 1983, the conduct at issue must have occurred "under the color of state law." See Nadig v. Nagel, 272 F. Supp.2d 509, 511-12 (E.D. Pa. 2003). As the Third Circuit Court has stated, "purely private acts which are not furthered by any actual or purported state authority are not acts under the color of state law." See Barna v. City of Perth Anboy, 42 F.3d 809, 816 (3d Cir. 1994). Further, "[i]t is well settled that an otherwise private tort is not committed under color of state simply because the tortfeasor is an employee of the state." See Mark v. Borough of Hatboro, 51 F.3d 1137, 1150 (3d Cir. 1995). The Plaintiff here has not alleged a nexus between the remark and the execution of Janco's official duties — suggesting an abuse of state power — that would render the comment actionable under Section 1983. See Bonenberger v. Plymouth Township, 132 F.3d 20, 23 (3d Cir. 1997). Thus, the claim must be dismissed.
In sum, the undersigned concludes that the Plaintiff has failed to state a claims against the Defendants under Section 1983; thus the District Court should grant summary judgment in favor of the Defendants in this regard.
III. CONCLUSION
For the reasons stated above, it is recommended that the District Court grant the Defendants' Motion in its entirety.
In accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.1.4(B) of the Local Rules for Magistrates, objections to this Report and Recommendation are due by February 12, 2004. Response to objections are due by February 23, 2004.